A Modern Twist on the Prison Industrial Complex

By: Isis Goldberg

In 1997, Angela Davis, author, professor and former Black Panther member, constructed the theory of prison-industrial complex.  For decades, the United States government has limited its accountability of the treatment and happenings of its detained citizens by contracting private prisons. These prison tycoons along with the government have benefited not only from the industry that is building and maintaining prisons, but also from the extremely cheap labor which many corporations have profited from including: Microsoft, Eddie Bauer, J.C. Penney, Victoria's Secret, Best Western Hotels and Honda.

Mrs. Davis´ ideas have at times been criticized and at times people have gone so far as to accuse her of being a conspiracy theorist with fantastic ideas.  Meanwhile, the prison industry owners and corporate giants have profited from the immense number of individuals currently incarcerated in this country, making the United States the country which incarcerates the most people in the world.  One in every three black men and one in every six Latino men will spend time in prison at some point in their lives.  Minorities compose 68 % of the current prison population. Some have criticized the prison industry as a form of modern day slavery because the number incarcerated people are disproportionately people of color.  Often times the crimes are either petty crimes which are correlated to impoverished living conditions and non-violent drug possession. 

Although it may be difficult to believe, understand, or rationalize the Machiavellian practice of incarcerating people as a business—it is not so farfetched.  Lawmakers and private corporations have tried to develop, establish and promulgate a law whose sole purpose is to incarcerate individuals.  The most recent targets are immigrants.  On October 28, 2010, NPR published an article entitled “Prison Economics Help Drive Arizona Immigration Law” which shed light into the role that the private prison industry played in pushing forward Arizona´s controversial legislation, SB 1070. 

The investigation conducted by NPR revealed that Arizona´s bill was drafted with the cooperation and participation of a secretive group called the American Legislative Exchange Council (ALEC).  This organization is composed of state legislators and powerful corporations and associations including the Corrections Corporation of America, the largest private prison company in the country which has been subject to countless lawsuits due to its mismanagement since 1998. 

According to NPR, the private prison industry sees immigration detention as there next big money making opportunity. Not only does the private prison industry have this foresight, but they have gone as far as to make campaign donations, hire powerful lobbyists, and hold secretive meetings to perfect a controversial legislative bill which would take the governor of Arizona four days to pass. 

The truth of the matter is that more than ever powerful private corporations have more influence and participation in drafting the bills which govern us all.  Private corporations which compose ALEC such as: the National Rifle Corporation, Exxonmobil, Reynolds American Incorporation (the big tobacco company), do not have the public welfare at interest.  Even if these corporations did not have a reputation for being carless, the bottom line is that corporations have no business contributing or controlling legislation.  A corporation does not have a personality, morality or constituents—their only objective and legal obligation is to make as much money for its shareholders by any means necessary.  

Prison Labor, Human Experimentation, & The BP Oil Disaster

By Zannie Carlson

Amidst the myriad of corporate responsibility and ethics controversies that arose from the BP oil spill, one issue recently reported by The Nation that I find particularly compelling is that BP hired prison labor to clean up the spill.

Some individuals outside of the prison system may argue that prison labor programs encourage strong work ethics, ties to community, and values that may contribute to deterrence. I have also heard the argument that because prisoners are consuming government resources while being imprisoned that they might as well contribute to society in some way before getting out. Although the health effects of daily exposure to crude oil is fairly unknown, the fact that “the chemicals in crude oil can damage every system in the body, as well as cell structures and DNA” suggests that corrections agencies should consider the impact of prison labor on prisoners, rather than corporate bottom lines. It almost goes without saying that the majority of prisoners are individuals who are in marginalized in society, who are disproportionately non-white and poor, with already limited access to healthcare before incarceration.

The American penal system has a long history of using prisoners’ bodies for research purposes or profit. Ironically, several months after the publication of The Nation’s BP article published in late July, the US government officially apologized to Guatemala for implementing a Tuskegee-like experiment on Guatemalan prisoners, in which officials intentionally infected prisoners with syphilis in the name of scientific progress.

Urban studies professor, Allen M. Hornblum's book, Acres of Skin: Human Experiments at Holmesburg, details human experimentation in a prison where mostly topical products were tested on prisoners. Although some commentators, including a review in The Journal of Criminal Justice and Popular Culture, emphasize that prisoners ultimately consent, clearly prisoners’ consent is not fully voluntarily as it is constrained by state power. I guess it makes you think twice about the “no animals have been tested” label on the shampoo bottle when prisoners have been there and done that, with about equal opportunity to object.

Likewise, in terms of the BP clean-up and current “work programs,” Louisiana prisoners who choose not to work release programs are punished by being assigned to work with toxic chemicals, like oil, as “[i]nmates can't pick and choose their work assignments and they face considerable repercussions for rejecting any job, including loss of earned "good time."’ The increased probability that offenders who do get an opportunity to re-enter society with compromised health or fatally-ill condition should give us pause. Is this the kind of “rehabilitation” we want from our criminal justice system? What kind of life are we establishing for them for re-entry? If our goal is to disempower people, then, we’ve done our work. 

DADT Panel Update - Webcast, Podcast

Hello Readers. 

For those of you who missed the DADT panel today, have no fear, technology is here. There's a webcast & podcast of the event. Enjoy!

For Every Scholar, There Must Also Be the Occasional Frivolity: Heard Any Good Films?

By: Gary C. Norman, Esq. L.L.M. Candidate 2011

Entertainments, such as the television or the film theatre, are equally of interest to the blind, vision impaired or otherwise disabled individual, even including those matriculated at WCL. 

People with sensory-related disabilities receive audio description or video description by way of a secondary audio stream during television broadcasts or at the film theatre.  Video description is the audio description of key visual elements in programming, inserted into natural pauses in the audio, to make television programming accessible.  In a related fashion, close captioning, available for some twenty years, provides a textual representation of the dialogue communicated in the program.

The Biblical admonition – the Lord Gives on the one hand, and takes away on the other - might be modified, in the context of video description, to reflect that which litigation both gives and takes away.

By way of history, rules adopted by the Federal Communications Commission in July 2000, required television stations in top-25 markets that are affiliated with ABC, CBS, NBC, or Fox to provide 50 hours of video description per calendar quarter, either during prime time or on children's programming.  Television broadcast stations affiliated or associated with any television network had to pass through video descriptions when the network provides them as long as the station has the technical capability to pass the descriptions through (subject to some technical exceptions). As sensible as these rules would appear, or appeared at the time, the so-called voice of blind or vision impaired persons, the National Federation of The Blind (NFB) joined the industry to oppose the rules, eventually winning in federal court at the appellate stage.

In October 2010, President Obama signed a piece of critical legislation (Public Law 111-260), the Twenty-First Century Communications and Video Accessibility Act. The Act passed because of bi-partisan support, including the leadership of Congressman Markey (D-Mass) and Congressman Barton (R-Tex). The dedicated multi-year advocacy campaign of the Coalition of Organizations for Accessible Technology is a key reason for the Act's passage. Title II of the Act provides the requirements for video programming. Section 203 of the Act imposes, among other requirements, a minimum number of hours of audio described shows per week. The Act specifically authorizes the Federal Communications Commission to possess the regulatory authority to impose accessible video programming mandates.

Likewise, an issue essential potentially to life itself, emergency notifications that scroll across the bottom of the screen, may be made accessible because of the Act. Of interest to administrative law students, the enforcement provisions of the Act indicate if, once a complaint has been filed and received, and the Federal Communications Commission fails to undertake action on any of its responsibilities to act on a complaint as specified in the Act, the party who filed the complaint can seek a mandamus action in the United States Court of Appeals of the District of Columbia. 

In conclusion, my charge is attending a film.  For those who are vision impaired, as consequence of a settlement or settlements, audio described films are available at AMCs.

Post Script

The organ of the people of the NFB, the Braille Monitor, published an article--Audio Description: Accessory or Accessibility?--that provides a glimpse into the perspective of the NFB as to video description mandates. The article states, "We have never said that audio description is a bad thing as it currently stands. Our concern is that it be kept in perspective...It is our responsibility to do as much as we can for ourselves and not to grab everything." 

I am not sure of the policy stance of the NFB respecting the passage of the Act. The Act seemingly has provisions the NFB supports, accessible emergency notifications, and the Act has provisions the NFB urges is a secondary issue, superfluous to the blind public, video description. 

Navajo Nation Public Interest Groups Send Notice of Suit to NN President

Days after a closely-watched Navajo Nation election, where the first female presidential candidate, Lynda Lovejoy, narrowly lost to incumbent, Ben Shelly, the Forgotten People, a grassroots advocacy organization, issued this announcement:

DOODA DESERT ROCK AND FORGOTTEN PEOPLE

            JOIN IN NOTICE OF SUIT TO PROTECT THE NAVAJO NATION COURTS

Window Rock, October 30, 2010

Today Elouise Brown, the president of Dooda Desert Rock, and Don Yellowman, the president of  The Forgotten People, announced that they have given notice of suit to President Joe Shirley, Jr., Attorney General Louis Denetsosie, and whoever the acting Legislative Counsel may be, to address any attempt to interfere with the independence and integrity of the Navajo Nation court system.

“We take this opportunity to file a protective notice,” said Elouise Brown, “because we are being alerted of moves to remove the Chief Justice, change the Judiciary Committee procedures for removal hearings, and otherwise obstruct justice and the rule of law.”  Don Yellowman added: “It is about time that the powers that be understood that there is a separation of powers in the Navajo Nation and it means something.  The Navajo Nation judicial system secured the right of individuals such as me and Elouise to get into court, and the right of our grassroots organizations to be heard, so we felt we must act.”

The notice says that the plaintiffs intend to act on behalf of Navajos who want access to a fair and impartial court system, and attorney James W. Zion proposes to enter the suit on behalf of clients.  The notice states a broad range of claims designed to anticipate any attack on the judicial system, and it puts the Navajo Nation on notice that the plaintiffs will claim as much protection for the court system as the law allows.

Brown and Yellowman jointly noted that the Navajo Nation Bill of Rights guarantees an independent and fair court system as part of the due process right of access to the courts.  “No matter what the legislative lawyers say, the Council cannot abolish the court system,” they said, “and we give warning that we will not tolerate legislative interference in the functioning of the court system.” 

Below is the notice of suit: 

TO:                  The Honorable Joe Shirley, Jr., President of the Navajo Nation

                        Louis Denetsosie, Esq.,  Attorney General of the Navajo Nation

                        The Acting Legislative Counsel of the Navajo Nation

PLEASE TAKE NOTICE, pursuant to 1 N.N.C. § 555(A) (2005), that the within-named public interest organizations and individuals, on their own behalf and on behalf of a class consisting of members of the public who wish due process access to a fair and impartial judicial system and who are  beneficiaries of public properties and monies of the Navajo Nation, desire to institute suit against the Navajo Nation, certain of its officers and public officials, employees or agents, and notice is provided as follows:

Prospective Plaintiffs

The prospective plaintiffs are Dooda Desert Rock, a grassroots Navajo public interest organization;  Elouise Brown, a Navajo individual and president of Dooda Desert Rock; The Forgotten People, a grassroots Navajo public interest organization;  Don Yellowman, a Navajo individual and president of The Forgotten People; and James W. Zion, a member of the Navajo Nation Bar Association and lawyer for Navajo litigants in the Navajo Nation judicial system.  They sue as entities and individuals for themselves and members of the Navajo Nation public who wish access to a just and fair Navajo Nation judicial system and the protection of public properties and monies.

Prospective Defendants

The prospective defendants include the Navajo Nation, the Navajo Nation Council, Judiciary Committee,  Budget and Finance Committee, other committees of the Navajo Nation Council, the Controller of the Navajo Nation (for his management of Navajo Nation monies and funds), individuals in public office or acting under color of public office, and John and Jane Doe, being the fictitious names of other persons or entities whose identities and roles in this matter are as of yet unknown.

Nature of Claims

This action will be brought to protect the rights of all plaintiffs and the plaintiff class and to secure rights to due process of law by access to a judicial system that is just and fair; assure the separation of powers of Navajo Nation government for proper checks and balances;  take all actions necessary to prevent the removal of sitting justices or judges, the impeachment of sitting justices or judges, or any other adverse action against justices or judges, or judicial employees, including amendments to Judiciary Committee procedures not supported by the separation of powers;  assure the integrity of the judicial selection and evaluation process; and to protect the property and monies of the Navajo Nation by removing or impairing justices or judges as the guardians of such property and monies.  Claims will also be based on fundamental principles of good governance, the  naachid process, hazho’ogo, and The Fundamental Laws, including provisions on leadership, the judicial function and governance.  If, for any reason, actors attempt to improperly interfere with the plaintiffs or their counsel through the Navajo Nation Bar Association, action will be taken against it or its officers or employees.

Relief Sought

The plaintiffs will seek full relief to secure the above claims, including prospective injunctive relief, full equitable relief, mandamus, prohibition and nalyeeh to protect the judicial system and its justices and judges, as indicated.  The plaintiffs will seek appropriate relief to enjoin any act to change, amend, terminate personnel, or eliminate or modify funding, including inadequate funding, of the Judicial Branch of the Navajo Nation until such time as its future is secure under new legislative and executive leadership.  The plaintiffs will also seek their costs and attorney fees.

We'll see what comes of it. 

Event Announcement: DADT: Beyond the Log Cabin Republicans' Injunction and the Defense Authorization Act

Announcing a TMA co-sponsored event, next week:

 Don't Ask, Don't Tell: Beyond the Log Cabin Republicans' Injunction and 

the Defense Authorization Act

Wednesday, November 10, 12 - 2pm, WCL Rm. 603. 

Featuring: 
Stephen Vladeck, American University Professor & National Security Law Expert (moderator)
Michelle McCluer, Executive Director of the National Institute of Military Justice
David McKean, Staff Attorney for Servicemembers Legal Defense Network
Ty Cobb, Legislative Director for the Human Rights Campaign
David Rittigers, Legal Policy Analyst for the Cato Institute
Closing remarks given by:
Anthony Varona, American University Associate Dean & Professor of Law 

This program is co-sponsored by the Office of Diversity Services, Program on Law & Government, National Security Law Brief, Labor & Employment Law Forum, LAMBDA Law Society, Legislation & Policy Brief, Modern American, Veterans of American University, Health Law & Justice Initiative and AU Queers & Allies.

Food will be provided. 

There is no charge for registration, but registration is required to attend the reception following the event.  Please go to www.wcl.american.edu/secle/registration, to register.

For further information, please visit either the National Security Law Brief’s or the Labor & Employment Law Forum’s websites at www.nationalsecuritylawbrief.com or www.aulaborlawforum.org.

Election Report: A "Heartland" Vote for Islamic Bigotry

Richael Faithful, TMA's EIC, here.

The Jurist reported that last night Oklahoma voters approved a state constitutional amendment, which bans the use of Islamic Law and international law in state court decisions.

A little more detail can be found here. And CNN has extensively covered this story here and views of legal experts can be found here.

The referendum approval is shocking on several levels. On a practical level, as pointed out in the latter link about legal scholars' reactions, is that the ban on the use of international law and the imposition of certain English-only requirements will prove hard for courts, which deal with multi-national and international issues all of the time. Like business law, for example.

I've also taken Islamic Law at American University; although sparingly applied by American courts, Islamic law is sometimes the most sensible law to apply from a choice-of-law perspective. Mainly, Islamic law, for the most part, addresses family law-like issues, and sometimes, litigating parties may prefer its application. Though admittedly sensitive, the application of Islamic law in American courts, is a perfectly sound rational and legal approach.

Of course, on a cultural level, this development is heartbreaking, from the view that Islamphobia has reached such a fervor in "middle America." I don't have much to say other than, "ugh."

If you are interested the intersection of Islamophobia and First Amendment rights, we'll have a special commentary on this subject in our fall issue slated for early December publication.

Thanks for reading.

Update: Nov. 4, Advocacy group files suit against Oklahoma: http://www.theroot.com/buzz/muslim-group-sue-oklahoma-over-sharia-law-amendment